National Post

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February 18, 2002

Grits may axe plan to revamp custody laws

Ottawa faces lawsuit: Latest delay angers shared parenting advocates

Janice Tibbetts and Michael Higgins
Southam News and National Post


Tom Hanson, The Canadian Press
Cauchon is leaning toward making some changes to custody laws, but may also maintain the status quo.

Martin Cauchon, the Minister of Justice, says he might abandon plans to overhaul Canada's child custody laws, a move a family rights group warns will mark the beginning of a long drawn out battle that could cost the federal government billions of dollars.

More than 1,000 people have been recruited in two weeks to launch a class-action lawsuit against the government in anticipation of the Liberals reneging on a promise to announce legislative changes to custody and access laws by May.

Mr. Cauchon believes revamping the Divorce Act might not be in the best interests of children -- a sentiment expressed by several of his provincial counterparts, who appear to be lukewarm to the prospect.

"It's something that I'm going to have to take a close look at because time is of the essence," Mr. Cauchon said in an interview. "I just want to keep sure I leave the door open in case I decide at the last minute not to proceed."

Mr. Cauchon inherited from his predecessor, Anne McLellan, a promise to announce legislative changes after five years of extensive studies, consultations, reports and public hearings.

"I know that there was a strong commitment from the former justice minister," Mr. Cauchon acknowledged. "The commitment from Anne was to proceed with something maybe around May or June this year. I haven't made up my mind."

He said he is leaning toward at least making some changes, but he stressed he might also do nothing at all.

Fathers' and grandparents' groups have lobbied for changes that would abandon the system of custody and access in favour of a new concept of shared parenting in which each parent would have a legal entitlement to custody after divorce.

"These divorce laws hurt mothers, fathers, brothers, grandparents .... The Divorce Act causes no end of emotional grief, heartache and pain," said Blaine Collins, president of the Saskatchewan branch of the National Shared Parenting Association.

Mr. Collins, a divorced father of two, is suing the Saskatchewan and federal government for "harbouring" family laws he claims violates the Charter of Rights and Freedoms.

Yesterday he revealed lawyers were also working on a class-action suit.

"There has been a groundswell of support from people from every province. Over 1,000 people have signed up in two weeks for a class-action.

"In the next year or two years the federal government is going to be facing a huge fight that in payouts and compensation could cost hundreds of billions of dollars," he said.

Roger Gallaway, the Liberal MP from Sarnia, Ont., chaired a special joint Senate-Commons committee on reform of the Divorce Act, which in 1998 endorsed joint parenting.

"If there is a failure to act that would be contemptuous of Canadians and a great disgrace," Mr. Gallaway said yesterday.

"There are huge problems with regards to the divorce laws and failure to act would be failing to govern."

The committee also said the "tender years doctrine," in which custody of young children almost automatically goes to the mother, should be eliminated.

Women's groups have pressed vigorously for the divorce laws to remain the same, arguing automatic shared parenting is not always realistic because it could be harmful to women and children when family violence is an issue. Those groups also feel it is more important to make services such as counselling more affordable than to make legislative changes.

Several provincial justice ministers said they do not consider significant changes to custody and access laws to be a top priority and they remain undecided about whether an overhaul is needed.

"I don't have a strong opinion that I wish to express at this point," said David Young, Ontario's Attorney-General, who is more concerned about enforcement of child support payments.

"I guess we're just interested at this point in looking at what Justice Canada decides to do and reviewing that," added Michael Baker, Nova Scotia's Minister of Justice.

At a meeting last week of provincial and federal justice ministers, enforcement of child support payments was the only area of family law that was discussed in light of the fact that two-thirds of Canadian parents are behind on their maintenance.

"In Manitoba we've really prioritized one aspect of family law and that's maintenance enforcement," said Gord Mackintosh, Manitoba's Justice Minister .

"We've seen over and over again when a parent leaves a province and moves somewhere else in Canada, it will slow down by months, sometimes years, the ability to collect support payments for the children."

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